One of the unfortunate and unintended consequences of California’s extensive regulatory efforts has been to create a small industry of plaintiffs’ law firms and repeat clients apparently determined to extract settlement money from businesses. Proposition 65 was implemented with the best spirit of consumer protection in mind. But those regulations have since transmogrified into tools that primarily profit a small group of plaintiffs’ attorneys, to an extent that has become increasingly burdensome for consumer product manufacturers, resellers and property owners.
Proposition 65 provides for private enforcement actions, which enable individuals or groups to enforce the statutes against consumer products companies, property owners and others. Prop 65 is a “right to know” law intended to help consumers make informed decisions about their purchases. The combination of a growing list of substances, difficulty in determining exposure levels with scientific certainty, sparse judicial and government oversight, and a right to attorneys’ fee awards under the statute, have transformed Prop 65 into a lucrative business model for a handful of law firms and closely-related consumer groups. Hundreds of Prop 65 actions are settled each year, with about 70% of the settlement money paid being allocated to attorneys’ fees for the plaintiffs’ lawyers.
California’s published statistics from 2013-2017 show an accelerating trend of more Notices of Violations filed each year. In 2016 alone, for example, 1,576 Notices of Violation were sent to businesses selling products in California, while 2,710 Notices of Violation were sent in 2017. The attorneys’ fee provisions of Prop 65 undoubtedly have much to do with that trend. In 2016, 760 judgments or settlements were reached totaling $30,150,111, of which $20,062,247 was paid as attorneys’ fees to plaintiffs’ lawyers. In 2017, 688 judgments or settlements were reached totaling $25,767,500, of which $19,486,362 was paid as attorneys’ fees to plaintiffs’ lawyers.
With that kind of monetary motivation, it is easy to see why some law firms make a practice of filing and serving Prop 65 Notices of Violations. This effectively creates a small industry of lawyers who pursue Prop 65 claims, often for a small group of repeat-plaintiffs who appear again and again with the same lawyers. Public records identify at least the following law firms, attorneys and their associated plaintiff clients, who pursue multiple Prop 65 claims:
- The Chanler Group
- Represents repeated Prop 65 plaintiffs Anthony Held, Ph.D., P.E.; Whitney R. Leeman, Ph.D; Mark Moorberg; John Moore; Paul Wozniak; and Laurence Vinocur
- Lexington Law Group
- Represents repeated Prop 65 plaintiff Center for Environmental Health
- Yeroushalmi & Yeroushalmi
- Represents repeated Prop 65 plaintiff Consumer Advocacy Group, Inc.
- Aqua Terra Aeris Law Group
- Represents repeated Prop 65 plaintiffs Environmental Research Center; and Center for Advanced Public Awareness, Inc. (“CAPA”)
- Law Office of Daniel N. Greenbaum
- Represents repeated Prop 65 plaintiff Shefa LMV, Inc.
- Klamath
- Represents repeated Prop 65 plaintiff Mateel Environmental Justice Foundation
- Lucas T. Novak
- Represents repeated Prop 65 plaintiff APS&EE, LLC
- Custodio & Dubey
- Represents repeated Prop 65 plaintiff Ecological Alliance, LLC
- Sheffer Law Firm
- Represents repeated Prop 65 plaintiff Susan Davia
- O’Neil Dennis, Esq.
- Represents repeated Prop 65 plaintiff Alicia Chin
- Bush & Henry, Attorneys at Law, P.C.
- Represents repeated Prop 65 plaintiff Michael DiPirro
- Brodsky & Smith, LLC
- Represents repeated Prop 65 plaintiffs Gabriel Espinosa; Kingpun Chen; Precila Balabbo; Ema Bell; and Anthony Ferreiro
- Law Offices of Stephen Ure
- Represents repeated Prop 65 plaintiff Evelyn Wimberley
- Lozeau Drury
- Represents repeated Prop 65 plaintiffs Environmental Research Center, Inc.; and Community Science Institute
- Robert Hancock of Pacific Justice Center
- Represents repeated Prop 65 plaintiff Erika McCartney
- Khansari Law Corporation
- Represents repeated Prop 65 plaintiff The Chemical Toxin Working Group, Inc.
- Law Office of Joseph D. Agliozzo
- Represents repeated Prop 65 plaintiff Sara Hammond
- Glick Law Group
- Represents repeated Prop 65 plaintiff Kim Embry
If you are unfortunate enough to receive a Prop 65 Notice of Violation from one of these lawyers or plaintiffs, or from any others, don’t ignore it. The problem will probably not go away by ignoring it, and prompt action can help keep the matter from getting far worse. Handling it yourself is also usually not a great plan. Remember that the plaintiffs who sent the Notice of Violation are almost always represented by counsel experienced in Prop 65 matters. You should contact experienced counsel to help you respond promptly and handle the matter with minimum disruption to your business.
Conkle, Kremer & Engel attorneys have many years of experience advising clients about how to avoid regulatory compliance issues, and we regularly defend clients against Notices of Violations of Proposition 65 and other California regulations. CK&E uses its extensive experience to help clients who are accused of regulatory violations quickly and effectively resolve claims, so clients can focus on growing their business.
MAR